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Police use of Tasers under debate in Vermont

A proposed state policy that would tell police when and how they can use Tasers is stalled as critics of the stun guns push for restrictions. After almost a year of drafting the policy regarding the use of conducted electrical weapons, the state’s Law Enforcement Advisory Board said the proposal is not ready for the eyes of the Legislature.

A proposed state policy that would tell police when and how they can use Tasers is stalled as critics of the stun guns push for restrictions.

After almost a year of drafting the policy regarding the use of conducted electrical weapons, the state’s Law Enforcement Advisory Board said the proposal is not ready for the eyes of the Legislature, which will reconvene Jan. 7.

The board finished a third draft of the policy in November, board chairman and Criminal Justice Training Council Executive Director Richard Gauthier said. The board also is working to finalize a certification course for electrical weapons.

The call for a statewide policy came after the 2012 death of a mentally impaired Thetford man who had been hit by a state trooper’s Taser.

Copies of the draft policy were sent to groups such as the American Civil Liberties Union to gain feedback.

“We got a lot of comments,” Gauthier said.

There is no statewide policy for conducted electrical weapons. Gauthier said not all law enforcement agencies in Vermont have officers who use these types of weapons.

“If the agency wants to issue them to their officers, that becomes part of the officers’ toolkit,” Gauthier said. “It’s not restricted to certain officers under certain circumstances.”

The Department of Public Safety created the board to advise Commissioner Keith Flynn, Gov. Peter Shumlin and legislators regarding statewide coordination of law enforcement.

During a working group meeting Dec. 13 and a full board meeting this week, it became clear there were concerns that needed to be addressed before the board could propose a policy to the Legislature, Gauthier said. Members of the public and of mental-health and civil-liberties groups attended the meetings to give feedback, Gauthier said.

Board members decided unanimously Monday to table the draft until further meetings are held, Gauthier said.

“It became pretty clear that we needed more work on this before we finalized any kind of policy or training,” Gauthier said.

The board plans to hold its next meeting Jan. 13 — location to be determined — and will report its progress to the Legislature in the meantime.

“What we’re essentially going to suggest to the Legislature is we continue down this path and schedule some more public hearings,” Gauthier said.

‘Best practices’

The board began drafting the statewide policy for use of electrical weapons after the death of Macadam Mason in June 2012, when Senior Trooper David Shaffer fired his Taser at Mason, striking him in the chest, during a confrontation outside Mason’s Thetford home.

Mason was later pronounced dead at Dartmouth Hitchcock Medical Center in Lebanon, N.H. An autopsy concluded that the Taser shock killed Mason.

Mason’s partner, Theresa Davidonis, who spoke at a legislative hearing in April, filed a lawsuit in July 2012 alleging the officer used excessive force by shooting Mason in the chest — contrary to the manufacturer’s directions and a state police policy that advises against firing a Taser at someone with a “cognitive impairment.”

Davidonis, who witnessed the fatal confrontation, said Mason never acted aggressively toward the police officer. Shaffer was later cleared of any wrongdoing in Mason’s death. The lawsuit was settled Dec. 15, and Davidonis received $30,000.

A Taser-related bill, H.225, is before the House Government Operations Committee, pending the final draft of the policy.

The draft of the policy outlines what the board identified as best practices from law-enforcement agencies across the state, Gauthier said, defining the minimum circumstances in which officers should use electrical force.

The board identified the first instance that an officer could use an electrical weapon as when “a subject uses physical activity to resist or takes affirmative action to defeat an officer’s ability to take him/her into custody or seize him/her, but the subject’s actions would not lead a reasonable officer to perceive a risk of physical injury to him/herself, the subject, or a third person.”

However, in this type of situation, a stun gun should be used only if another technique, such as chemical spray or an empty hand strike, has failed, and the officer has reason to believe another similar technique would fail, according to the draft.

“Officers should use the minimum number of cycles possible to take a suspect into custody or mitigate their assaultive behavior,” the policy draft states, adding that electrical weapons should not be used in a “punitive or coercive manner.”

An electrical weapon can be used as a first choice when a subject’s behavior creates an “imminent risk of physical injury” to any of the people involved in the incident, the policy draft states. The board defined “imminent” as physical injury about to occur.

The policy states that electrical weapons may be used on members of a “special population” — those who are cognitively impaired, operating a car, minors, pregnant, elderly, restrained, standing in an elevated area near water or flammable materials, or who have heart conditions. However, medical services must be contacted if this occurs, the draft states.

Draft criticisms

Allen Gilbert, executive director of the Vermont chapter of the American Civil Liberties Union, said his organization thinks the draft should be stricter to prevent deaths like Mason’s from happening again.

“We think it should be more prescriptive as to what it says should not be done,” Gilbert said.

Gilbert said the draft mainly was a compilation of Taser policies in law-enforcement agencies throughout the state, and it contained no new ideas.

“To think that unnecessary, even tragic, incidents are going to be prevented because this policy says to do something different than what had been done simply isn’t true,” Gilbert said. “It doesn’t do that.”

After reviewing the draft, Gilbert said he wrote the board a letter outlining the ACLU’s main concerns, and he also attended the two sessions in December.

“I think that law enforcement generally is not used to having a lot of engagement with the public on a policymaking basis,” Gilbert said. “They welcomed people being there and working with them.”

Gilbert said his biggest criticisms were that the policy allows Taser use on vulnerable populations, and it does not prescribe the correct test for making sure electrical weapons are working properly before police respond to a call.

“That can be a problem, because Tasers can do what people call ‘capture the heartbeat,’ and that’s when someone can go into cardiac arrest,” Gilbert said. “One of the things that is a real danger if the Taser is out of spec is if the discharge is not within the range of what it’s supposed to be. It can cause a much greater risk to an individual.”

Gilbert also argued that the standard of immediate danger, or danger that will happen, should be used rather than imminent danger for determining whether an electrical weapon should be used. After Mason’s death, Gilbert said he was left wondering if there were another way the trooper could have handled the situation.

“Officers are given latitude in deploying force they think is necessary once certain thresholds are reached, such as the imminent threat,” Gilbert said. “At that point, you can pull out pepper spray, or you can pull out a Taser, or you can pull out a gun, so it’s not like you’ve got to try everything before you pull out a revolver.”

Looking forward

In the end, Gilbert said the board made the right decision in postponing a final policy for the legislative review.

“There was pretty broad agreement that some more work needed to be done,” Gilbert said. “To their credit, they said, ‘We’ve got to slow this down and do some more work.’”

Gauthier said the board planned to hold several public meetings in the evening so more people could attend. The board also is planning to invite experts and guest speakers regarding Taser policy and electrical weapon safety.

“It’s pretty clear that there are some misperceptions in the community, so what we’re hoping to gain by engaging in this process is, it will be kind of educational and beneficial for both sides,” Gauthier said. “Using that, we can springboard into a policy that everyone can live with.”

Contact Elizabeth Murray at 651-4835 or emurray@burlingtonfreepress.com. Follow her on Twitter at www.twitter.com/LizMurraySMC.